Telangana High Court

Syed Ayub vs The State Of A.P. on 28 June, 2024

THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI

            CRIMINAL APPEAL No.737 OF 2012

J U D G M E N T:

This Criminal Appeal is preferred by appellant-

accused No.2 under Section 374(2) of the Code of

Criminal Procedure (for short 'Cr.P.C.,) aggrieved by the

Judgment of Conviction and Sentence dated 16.07.2012

(impugned Judgment) passed in S.C.No.182 of 2012 by

the learned Principal Sessions Judge, Sangareddy (for

short 'learned trial Court').

02. For the sake of convenience, hereinafter, the

parties will be referred as per their array before the

learned trial Court.

03. The brief facts of the case are as under:

Complainant (PW1) is the wife of Kammari

Manohar Chari (hereinafter referred as 'the deceased').

On 02.02.2012 at about 12:00 noon the deceased

quarreled with the complainant and took away her gold

pusthelathadu and left the house along with his friends

i.e., accused Nos.1 and 2 and thereafter he did not

return to home. Through villagers she came to know

that one male dead body was found near Old Railway

Quarters, Patancheru and she identified the dead

person as his husband. She filed a complaint

suspecting accused persons might have killed the

deceased.

04. The Police, Patancheru registered a case in

Crime No.38 of 2012 for the offences under Sections

302 and 379 of the Indian Penal Code (for short 'IPC')

and took up investigation. After completion of the

investigation, filed charge sheet against accused Nos.1

and 2 for the said offences.

05. The learned trial Court framed charges for

the offences under Sections 302 and 379 of IPC against

the accused Nos.1 and 2 and they denied the said

charges. During the course of trial, to prove the guilt of

accused Nos.1 and 2, prosecution examined PW1 to

PW9 and got marked Exs.P1 to P8 and MOs.1 to 5. No

oral evidence was adduced on behalf of accused.

06. After considering both oral and documentary

evidence available on record and on hearing both sides,

the learned trial Court by way of impugned Judgment

acquitted accused Nos.1 and 2 for the offences under

Sections 302 and 379 of IPC and convicted them for the

offence under Section 411 of IPC and sentenced them to

undergo Rigorous Imprisonment for a period of three

years and to pay fine of Rs.5,000/- each and in default

of payment of fine, they shall undergo Simple

Imprisonment for a period of three months. Aggrieved

by the impugned Judgment, accused No.2 has preferred

this Criminal Appeal.

07. Heard Sri Manda Adam, learned counsel for

appellant-accused No.2 and learned Additional Public

Prosecutor appearing for the State-respondent. Perused

the record.

08. Learned counsel for appellant-accused No.2

submitted that there is no eyewitness to the alleged

offence and that all the prosecution witnesses are

hearsay witnesses and PW7 is a stock witness for

prosecution and his evidence cannot be believed and

prayed this Court to allow this Criminal Appeal by set

aside the Judgment of Conviction and Sentence passed

by the learned trial Court.

09. Learned Additional Public Prosecutor

appearing for the State-respondent submitted that the

learned trial Court after considering the oral and

documentary evidence, has rightly convicted and

sentenced accused Nos.1 and 2 for the offence under

Section 411 of IPC, for which no interference of this

Court is needed and prayed to dismiss this Criminal

Appeal.

10. Now, the point for determination is:

Whether the impugned Judgment passed by the learned trial Court, liable to be set aside?

P O I N T:

11. The learned trial Court, after considering the

entire material on record, acquitted accused Nos.1 and

2 for the offences under Sections 302 and 379 of IPC

and at the same time, found accused Nos.1 and 2 guilty

for the offence under Section 411 of IPC and accordingly

convicted and sentenced them to undergo Rigorous

Imprisonment for a period of three years and to pay fine

of Rs.5,000/- each and in default of payment of fine,

they shall undergo Simple Imprisonment for a period of

three months.

12. The State has not preferred any appeal in

respect of acquittal of accused Nos.1 and 2 for the

offences under Sections 302 and 379 of IPC. It is to be

noted that appellant-accused No.2 has filed this

Criminal Appeal questioning the conviction and

sentence imposed on him for the offence under Section

411 of IPC. Criminal Appeal in CRL.A.No.742 of 2012

was filed by accused Nos.1 and 2 on the file of this

Court challenging the impugned Judgment and the

same was dismissed for non-prosecution (vide separate

Judgment) on 23.04.2024 as the learned counsel for

appellants did not turn up for submitting arguments.

Anyhow the Judgment in CRL.A.No.742 of 2012 does

not come in the way of rendering this Judgment, which

is being passed on merits.

13. This Court has perused the entire evidence

adduced before the learned trial Court. PW1 is the wife

of the deceased. PW2 is the mother of the deceased.

PW3 and PW4 are the circumstantial witness. PW5 is

the photographer. PW6 is the panch witness for scene

of offence and inquest. PW7 is the panch for confession

and recovery. PW8 is the Doctor who conducted

autopsy. PW9 is the Investigating Officer.

14. PW1 stated that on the fateful day i.e.,

02.02.2012 at about 11:00 AM., there was a quarrel

between PW1 and the deceased and that deceased taken

away her Mo.1 Pusthelathadu and that accused Nos.1

and 2 who are friends of the deceased came to their

house and promised to conciliate the matter and

thereafter, she came to know that a dead body was

found near Railway track, Patancheru. On that, she

went there and identified the dead body as that of her

husband. She noticed injuries over the dead body and

gave Ex.P1-report to Police.

15. PW2 who is mother of the deceased, came to

know entire incident from PW1 and proceeded to

Railway track and identified the dead body of the

deceased as that of her son and she also found injuries

all over the face of the deceased.

16. PW3 stated that he saw the dead body of the

deceased at the scene of offence and he also found

bricks near the dead body.

17. PW4 stated that on 02.02.2012 at 12:00

noon when he went to Kirana Shop he saw the deceased

along with two persons. The deceased handed over his

motorbike to PW4. Later, PW4 came to know that the

deceased was murdered by someone.

18. PW5 is a Police Constable who stated that he

photographed the entire scene of offence and collected

blood stains from bricks.

19. PW6 stated that Police conducted scene of

offence panchanama and rough sketch and he acted as

a panch witness. PW6 further stated that he saw

injuries on the face of the dead body.

20. PW7 stated that accused confessed the

commission of offence and pointed out the scene of

offence. Accused No.1 handed over Mo.1-Pusthelathadu

and accused No.2 handed over Mo.2-cell phone. Mo.3-

scooter was recovered from the scene of offence at the

instance of accused. During cross-examination, PW7

categorically stated that Mos.1 and 2 were produced by

accused from their pockets.

21. PW8 stated that he conducted autopsy over

the dead body of the deceased and found cut injuries

over left side of forehead, front portion of head and

upper lip, fracture of lower mandible, contusion on chin

and left eye and laceration on right side of forehead.

PW8 opined that cause of death is 'cardio respiratory

arrest due to head injury'.

22. PW9 stated about entire investigation

including registration of crime, recording statements of

witnesses, preparation of scene of offence panchanama,

rough sketch, seizure of material objects, conducted

inquest over the dead body of the deceased,

apprehension of accused, sending material objects to

Forensic Scientific Laboratory and after collecting all

necessary documents, he filed charge sheet before the

concerned Court.

23. While acquitting accused Nos.1 and 2 for the

offences under Sections 302 and 379 of IPC, the learned

trial Court has given a finding that accused took the

deceased along with them on 02.02.2012 at about 11:00

AM., and that the dead body was traced out on the

same day at about 07:00 PM., therefore, the time gap

between the deceased going along with accused and

dead body being traced out, is considerably large and

there is possibility of anyone coming into contact with

the deceased. Ultimately, by virtue of above finding, the

learned trial Court has ruled out 'last seen theory' on

the ground that there is large time gap.

24. As seen from the entire evidence, PW1

categorically deposed that on the fateful day i.e.,

02.02.2012 at about 11:00 AM., quarrel took place

between PW1 and the deceased and that deceased took

Mo.1-pusthelathadu and went away along with accused

Nos.1 and 2. PW4 categorically deposed that on the

same day at about 12:00 noon, the deceased came

along with two persons and kept his motorbike in the

house of PW4. It is the case of the prosecution that

accused Nos.1 and 2 have proceeded to the house of the

deceased on Mo.3-Scooter and from there, the deceased

proceeded on his motorbike and accused Nos.1 and 2

proceeded on Mo.3-Scooter to the house of PW4. At the

house of PW4, deceased kept his motorbike. From the

house of PW4, both accused Nos.1 and 2 and the

deceased proceeded on Mo.3-Scooter and reached scene

of offence where both accused made the deceased to

consume liquor, with a plan to steal away Mo.1-

pusthelathadu from the deceased by killing him.

Accordingly, on the same day at about 04:00 PM.,

accused have executed their plan, by throwing Mo.4-

bricks on the head of the deceased and killed the

deceased, thereafter, both accused committed theft of

Mo.1-pusthelathadu and Mo.2-cell phone from the

deceased. Therefore, it is clear that the deceased was

last seen with two persons at 12:00 noon by PW4,

whose testimony remained unchallenged and being

corroborated with other prosecution witnesses. It is

pertinent to note that accused have not taken any plea

of alibi. Therefore, after careful scrutiny of entire

evidence there is no material on record to hold that

those two persons are not accused. Moreover, as rightly

held by the learned trial Court there is no explanation

forthcoming from both accused as to how Mos.1 and 2

are in their possession. In view of the above, the time

gap between 'last seen' and 'commission of offence' is a

short period of four (4) hours i.e., from 12:00 noon to

04:00 PM as per confession which was recorded in the

presence of PW7.

25. In Krishan Kumar and another v. The

State of Haryana 1 wherein it was held that:

"'Last seen' as a link in the chain of circumstantial evidence, would suggest existence of oral testimony of at least one witness to

1 Criminal Appeal Nos. 1076-1077 of 2015 decided on 08.08.2023 by the Honourable

Supreme Court of India

establish that the deceased was last seen in the company of the accused."

26. By way of above authority, the Honourable

Supreme Court has made it clear that 'last seen' forms a

chain of circumstances even if one witness speaks

about the deceased was last seen in the company of

accused. In the case on hand, accused are the only

persons lastly seen along with the deceased.

27. In State of Uttar Pradesh v. Satish 2 the

Honourable Supreme Court of India held that:

"The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and then the deceased is found dead is so small that possibility of any person other than the accused being a part of the crime becomes impossible."

28. In the above authority, the Honourable

Supreme Court of India has made it clear that the last

seen theory comes into play where the time gap between

the point of time when accused and the deceased were

'seen last alive' and then the deceased is found dead is

'so small' that possibility of any person other than

(2005) 3 SCC 114

accused being a part of the crime becomes impossible.

In the present case on hand, the time gap is so small

and there is no possibility of any person other than

accused in the company of the deceased were seen last

alive.

29. As stated supra, there is no explanation

given by accused as to how Mos.1 and 2 came into their

possession. It is admitted fact that the deceased was in

company with accused on the fateful day from 11:00

AM., onwards. The deceased along with two persons

were last seen together by PW4 at about 12:00 PM. The

offence occurred at about 04:00 PM as per confession.

Therefore, there is very short time gap between last seen

alive and occurrence of offence. Be that as it may,

primarily there is no explanation forthcoming from

accused as to when accused disconnected from the

company of the deceased, if they had not committed any

offence. Moreover, accused have not taken any plea of

alibi. It is for accused to explain when they have

disconnected from the company of the deceased. There

is no whisper from accused as to what had happened

after leaving the house of PW4. It is not disputed that

the gold ornament i.e., Mo.1-Gold Pusthelathadu of

PW1 and Mo.2-Cell phone of the deceased were with the

deceased, while accused and deceased were together

leaving the house of PW4 on Mo.3-Scooter. On this

crucial aspect, there is no explanation, muchless cogent

explanation, as to how Mos.1 and 2 came into the

possession of accused. Whereabouts of the deceased

were also not given by both accused. In view of the

above scenario, it is clear that accused are the only

persons who accompanied the deceased for the last

time, therefore, apparently, it is for accused to discharge

their burden by way of cogent explanation.

30. In Ram Gopal S/o Mansharam v. State of

Madhya Pradesh 3 the Honourable Supreme Court of

India held that:

8. In Satpal v State of Haryana4, this Court observed as under:

"6. We have considered the respective submissions and the evidence on record. There is no eyewitness to the occurrence but only circumstances coupled with the fact of the

2023 LiveLaw (SC) 120

(2018) 6 SCC 610

deceased having been last seen with the appellant. Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine."

9. In view of the afore-stated legal position, it is discernible that though the last seen theory as propounded by the prosecution in a case based on circumstantial evidence may be a weak kind of evidence by itself to base conviction solely on such theory, when the said theory is proved coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused does owe an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death might have taken place. If the

accused offers no explanation or furnishes a wrong explanation, absconds, motive is established and some other corroborative evidence in the form of recovery of weapon etc. forming a chain of circumstances is established, the conviction could be based on such evidence.

10. So far as the facts in the instant case are concerned, it was duly proved that the death of the deceased was homicidal. It was not disputed that the petitioner had taken the deceased with him on the previous day evening and thereafter he was also seen with the deceased by the witness Vijay Singh (PW-4) and the very next day early morning, the dead body of the deceased was found lying in the field at village Chachiha. The time gap between the period when the deceased was last seen with the accused and the recovery of the corpse of the deceased being quite proximate, the non-explanation of the petitioner with regard to the circumstance under which and when the petitioner had departed the company of the deceased was a very crucial circumstance proved against him. Having regard to the oral evidence of the witnesses, the enmity between the deceased and the petitioner had also surfaced. The corroborative evidence with regard to recovery of the weapon - axe alleged to have been used in the commission of crime from the petitioner, also substantiated the case of prosecution."

31. In the above authority, the Honourable

Supreme Court of India has made it clear that if there is

no eyewitness to the occurrence but only circumstances

coupled with the fact of the deceased having been last

seen with accused, criminal jurisprudence and the

plethora of judicial precedents leave little room for

reconsideration of the basic principles for invocation of

the 'last seen theory' as a facet of circumstantial

evidence. Last seen theory may be a weak kind of

evidence by itself to found conviction upon the same

singularly. But when it is coupled with other

circumstances such as the time when the deceased was

last seen with accused and the recovery of the corpse

being in very close proximity of time, accused owes an

explanation under Section 106 of the Indian Evidence

Act with regard to the circumstances under which death

may have taken place. If accused offers no explanation,

or furnishes a wrong explanation, absconds, motive is

established, and there is corroborative evidence

available inter-alia in the form of recovery or otherwise

forming a chain of circumstances leading to the only

inference for guilt of accused, incompatible with any

possible hypothesis of innocence, conviction can be

based on the same. If there be any doubt, or break in

the link of chain of circumstances, the benefit of doubt

must go to the accused. Each case will therefore have

to be examined on its own facts for invocation of the

doctrine.

32. While dealing with the facts of the case

therein, the Honourable Supreme Court of India held

that it was not disputed that accused had taken the

deceased with him on the previous day evening and

thereafter he was also seen with the deceased by the

witness Vijay Singh (PW-4) and the very next day early

morning, the dead body of the deceased was found lying

in the field at village Chachiha. The time gap between

the period when the deceased was last seen with the

accused and the recovery of the corpse of the deceased

being quite proximate, the non-explanation of accused

with regard to the circumstance under which and when

accused had departed the company of the deceased was

a very crucial circumstance proved against him.

33. In the present case on hand, PW4 had seen

the deceased along with two persons at 12:00 noon and

as per confession statements of accused, the offence

occurred at about 04:00 PM and the dead body of the

deceased was found at about 07:00 PM. Therefore, the

time gap between the period when the deceased was last

seen with those two persons, occurrence of offence and

finding of dead body of the deceased is being quite

proximate i.e., 'few hours' only. Hence, accused owes

an explanation under Section 106 of the Indian

Evidence Act with regard to the circumstances under

which death may have taken place.

34. In the context of this case, it is relevant here

to extract Section 386 of the Code of Criminal Procedure

(for short 'Cr.P.C'):

After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may

(a) In an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) In an appeal from a conviction-

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-

tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;

           (c)     In   an   appeal    for   enhancement    of
     sentence;

(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re- tried by a Court competent to try the offence, or

(ii) alter the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;

(d) in an appeal from any other order, alter or reverse such order;

(e) make any amendment or any consequential or incidental order that may be just or proper:

Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement.

Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.

35. As per Section 386(b) of the Cr.P.C. in an

appeal from a conviction although the Appellate Court

can alter the finding, maintaining the sentence, or with

or without altering the finding, alter the nature or the

extent, of the sentence, but not so as to enhance the

same. Under Section 386(b)(iii), in an appeal from a

conviction, for enhancement of sentence, the Appellate

Court can exercise the power of enhancement. The

Appellate Court in an appeal for enhancement, can

enhance the sentence also. The proviso to Section 386,

further, provides that the sentence shall not be

enhanced unless the accused had an opportunity of

showing cause against such enhancement.

36. In Kumar Ghimirey v. The State of

Sikkim 5 the Honourable Supreme Court held that:

"13. In the case of Sahab Singh and others vs. State of Haryana, (1990) 2 SCC 385, also after considering the procedure prescribed by Cr.P.C. including Sections 386 and 401 High Court held that the High Court even if no appeal is filed by the State for enhancement of sentence can exercise suo motu power of revision under Section 397 read with Section 401 of Cr.P.C. but before the High Court can exercise its revisional jurisdiction to enhance the sentence, it is imperative that the convict is put on notice. In paragraph 4 this Court laid down following:

"4.Section 374 of the Code of Criminal Procedure ('the Code' hereinafter) provides for appeals from conviction by a Sessions Judge or an Additional Sessions Judge to the High Court. Section 377 entitles the State Government to direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. Sub−section 3 of Section 377 says that when an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause the accused may plead for his acquittal or for the reduction of the sentence. Admittedly no appeal was preferred by the State Government against the sentence imposed by the High Court on the conviction of the appellants under Section 302/149, I.P.C. Section 378 provides for an appeal against an order of acquittal. Section 386 enumerates the powers of the appellate court. The first

5 Criminal Appeal No.719 of 2019 (Arising out of SLP (Criminal) No.1948 of 2017) by

the Honourable Supreme Court of India

proviso to that section states that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement. Section 397 confers revisional powers on the High Court as well as the Sessions Court. It, inter alia, provides that the High Court may call for and examine the record of any proceeding before any inferior criminal court situate within its jurisdiction for the purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any inferior court. Section 401 further provides that in the case of any proceedings, the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by Sections 386,389, 390 and 391 of the Code. Sub−section 2 of Section 401 provides that no order under this Section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by Pleader in his own defence. Sub−section 4 next provides that where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at theinstance of the party who could have appealed. It is clear from a conjoint reading of Sections 377, 386, 397 and 401 that if the State Government is aggrieved about the inade quacy of the sentence it can prefer an appeal under Section 377(1) of the Code. The failure on the part of the State Government to prefer an appeal does not, however, preclude the High Court from exercising suo motu power of revision under Section 397 read with Section 401 of the Code since the High Court itself is empowered to call for the record of the proceeding of any court subordinate to it. Sub− section 4 of Section 401 operates as a bar to the party which has a right to prefer an appeal but has failed to do so but that sub−section cannot stand in the way of the High Court exercising revisional jurisdiction suo motu. But before the High Court exercises its suo motu revisional jurisdiction to enhance the sentence, it is imperative that the convict is put on notice and is given an opportunity of being heard on the question of sentence either in person or through his advocate. The revisional jurisdiction cannot be exercised

to the prejudice of the convict without putting him on guard that it is proposed to enhance the sentence imposed by the Trial Court."

14. The same proposition has been laid down in Govind Ramji Jadhav vs. State of Maharashtra, (1990) 4 SCC 718 and Surendra Singh Rautela @ Surendra Singh Bengali vs. State of Bihar (Now State of Jharkhand), (2002) 1 SCC."

37. In the above authority, the Honourable

Supreme Court of India made it clear that the High

Court even if no appeal is filed by the State, can

exercise suomotu power of revision under Section 397

read with Section 401 of the Cr.P.C. but before the High

Court can exercise its revisional jurisdiction, it is

imperative that the convict is put on notice.

38. In view of the above discussion and having

regard to the above settled principle of law, without

going into merits and demerits of the case, as there was

improper consideration of material on record, this Court

feels it appropriate to direct the learned trial Court to